United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER 
I. SCHENKIER UNITED STATES MAGISTRATE JUDGE.
Gabriel B., moves for reversal and remand of the final
decision of the Commissioner of Social Security
("Commissioner") denying his application for
disability benefits (doc. # 9: Pl.'s Mot. For Summ. J.,
doc. # 10: Pl.'s Mem.). The Commissioner has filed a
response brief, asking this Court to affirm the
Commissioner's decision (doc. #18: Def.'s Mot. For
Summ. J., doc. # 19: Def.'s Resp.). Plaintiff has filed
his reply (doc. # 20: Pl.'s Reply). The matter is fully
briefed. For the following reasons, we grant Mr. B.'s
motion and remand the case.
applied for disability insurance benefits ("DIB")
on September 3, 2014, alleging an onset date of September 26,
2013 (R. 14). Mr. B.'s date last insured was June 30,
2019 (Id.). Mr. B.'s claim and subsequent appeal
for reconsideration were both denied (R. 14, 90, 107).
Shortly thereafter, Mr. B. filed a written request for a
hearing in front of an Administrative Law Judge
("ALJ") (R. 14, 124-25). Mr. B. and a Vocational
Expert ("VE") testified at the hearing which was
held on July 7, 2017 (R. 14, 30). On October 10, 2017, the
ALJ issued a decision denying Mr. B.'s claim for benefits
(R. 24). The Appeals Council declined to review the ALJ's
decision, making it the final word from the Commissioner (R.
1-3). See Varga v. Colvin, 794 F.3d 809, 813 (7th
Cir. 2015); 20 C.F.R. §404.981.
was born on April 25, 1970 (R. 77, 144). He experienced a
work-related back injury in April 2012, and he underwent
L5-S1 fusion surgery on October 31, 2012 (R. 99, 184). Mr. B.
stopped working on September 26, 2013 because his employer
could not accommodate his work restrictions (R. 185). Mr. B.
filed a worker's compensation claim and then began
vocational rehabilitation in June 2014 (R. 225). In his
function report dated March 5, 2015, Mr. B. reported that he
had pain in his lower back and right foot and leg that
prevented him from doing many things; he needed to alternate
between standing or walking and sitting; he was restricted to
driving no more than 30 minutes; he was restricted to working
four hours every other day; and he required use of a cane (R.
connection with Mr. B.'s worker's compensation claim,
he underwent a functional capacity evaluation
("FCE") on June 3, 2013 (R. 304-12). Mr. B.
demonstrated functional capabilities at the light to medium
level in lifting weights (R. 304). The examiner determined
that Mr. B. was capable of a five to six-hour workday,
sitting in 30-minute increments for a total of three to four
hours, standing in 30-minute increments for a total of three
to four hours and occasionally walking moderate distances for
a total of two to three hours (R. 305). Mr. B. could
occasionally (6-33% of the day or 0.5 to 2.5 hours) balance,
bend, stoop, climb stairs, crawl, crouch, use his foot,
kneel, squat, and flex and rotate his neck (Id.).
Mr. B. could occasionally carry 70 pounds and frequently
(34-66% of the day or 2.5 to 5.5 hours) carry two to seven
the assessment, Mr. B. reported pain in his lower back and
right leg, calf and foot (R. 304). He demonstrated difficulty
and reported increased pain with sitting, standing and
walking activities (Id.), As the assessment
proceeded, Mr. B. demonstrated a decreased tolerance to
received ongoing care from Sean A. Salehi, M.D., the
neurosurgeon who performed his October 2012 fusion surgery
(R. 325). On June 25, 2013, Mr. B. was examined by Dr. Salehi
and reported continued pain in his back and numbness in his
left leg due to work that required him to bend and twist
(Id.). Upon examination, Mr. B.'s gait was
normal, his sensation to light touch was decreased in his
right leg and the deep tendon reflexes were diminished in his
lower extremities (R. 326). Dr. Salehi noted that Mr. B.
should not bend or twist for more than one minute more than
three times an hour (R. 327).
September 25, 2013, Mr. B. reported to Dr. Salehi that his
pain had worsened and that, with activity, the pain increased
in severity to a seven to eight out often (R. 328). Mr.
B.'s gait was slow but otherwise normal and his sensation
to light touch was decreased in the right leg (R. 329). Mr.
B. was prescribed Ultram and Neurontin for his pain (R. 330).
Additionally, Dr. Salehi limited Mr. B. to desk work with no
lifting, pushing or pulling of anything over ten pounds
October 1, 2013 Mr. B. underwent a CT scan that revealed
sclerotic changes involving the endplates at the L5-S1 level,
a component of congenital lumbar spinal canal stenosis, facet
arthropathy and hypertrophy creating mild spinal and mild to
moderate bilateral neural foraminal stenosis at L3-4 more on
the right, and mild to moderate bilateral neural foraminal
stenosis at L4-5 (R. 302). Mr. B. informed Dr. Salehi on
October 17, 2013 that he was no longer having right leg pain
and he was no longer working because his employer would not
accommodate the restrictions (R. 334). Mr. B. still
experienced numbness in his right leg and foot and had
stopped taking the medications due to side effects of panic
attacks (Id.), Dr. Salehi stated that Mr. B. could
resume working with his "prior permanent work
restrictions outlined" in the June 3, 2013 FCE (R. 336).
6, 2014, Mr. B. attended a new patient consultation at
Premier Pain Specialists with Arpan Patel, M.D. (R. 298).
Over the course of the next nearly two and a half years, Mr.
B. had 31 appointments at Premier Pain Specialists; 12
appointments were with Dr. Patel, and the remaining were with
a nurse practitioner or physician's assistant under the
supervision of Dr. Patel or one of his colleagues (R.
380-420, 468-93, 899-904, 923-56).
first appointment, Dr. Patel reviewed Mr. B.'s
work-related injury and his October 31, 2012 lumbar L5-S1
fusion surgery (R. 298). Dr. Patel summarized Mr. B.'s
complaints of pain in his left lower back and radiating to
his right lower back; his need to move from sitting to
standing to moving to lying down to alleviate the symptoms;
numbness in his toes, right knee and right thigh; the
symptoms worsening with activities; and constant pain
averaging an eight out of ten (Id.). Dr. Patel found
that Mr. B. had fatigue, blurred vision, loss of balance,
irregular heartbeat, excessive urination, back pain, weakness
and tingling/pins and needles, trouble sleeping and anxiety
(R. 299). On physical examination, Dr. Patel described the
pain Mr. B. experienced in his lumbar spine after various
tests and noted his antalgic gait pattern (a limp adopted to
avoid pain) (R. 299-300). Dr. Patel assessed Mr. B. with
sacroiliitis, lumbosacral spondylosis without myelopathy,
radiculopathy T/L/S, and postlami back syndrome, lumb (R.
300). According to Dr. Patel, Mr. B.'s MRI
showed facet arthropathy in the lower lumbar facet joints
(Id.). Dr. Patel started Mr. B. on medications and
recommended minimally invasive procedures to attempt to
alleviate his pain (Id.). Dr. Patel's plan was
to optimize Mr. B.'s overall pain condition prior to
sending him back to work (R. 301). Finally, after
psychometric testing, Dr. Patel noted that Mr. B. had
indicators suggesting major depression (Id.).
Patel performed a left sacroiliac joint injection under
fluoroscopic guidance on Mr. B. on May 14, 2014 (R. 294). On
May 29, 2014, Mr. B. experienced a 50 percent improvement of
his left lower back pain (R. 291). Nonetheless, Mr. B.
continued to experience pain in a discreet location in his
lower left back and the MRI reported facet arthropathy in his
lower lumbar facet joints (R. 292).
12, 2014, Dr. Patel performed left L3, L4 and L5 lumbar
medial branch blocks on Mr. B. (R. 288). On August 6, 2014,
Dr. Patel performed a lumbar transforaminal epidural steroid
injection under fluoroscopy on Mr. B. to address his
diagnosis of lumbar radiculopathy, spinal stenosis and
post-laminectomy syndrome (R. 285).
a July 22, 2014 visit to Dr. Salehi, Mr. B. rated his pain as
a constant seven to eight out often (R. 331). Prolonged
walking, standing or sitting resulted in burning and cramping
in his right calf and he experienced difficulty sleeping due
to cramping in his right foot and toes (Id.).
Driving to vocational rehabilitation, which took an hour,
worsened his pain (Id.). Upon examination, there was
mild tenderness throughout Mr. B.'s lumbar spine and his
range of motion was limited (R. 332). Mr. B.'s sensation
to light touch was decreased in his right leg, and Dr. Salehi
recommended a spinal cord stimulator for Mr. B.'s
radicular symptoms (R. 332-33). Dr. Salehi stated that Mr. B.
could continue to work under the June 3, 2013 FCE
restrictions but for no more than six hours per day (R. 333).
Patel performed a lumbar transforaminal epidural steroid
injection under fluoroscopy on August 6, 2014 on Mr. B. (R.
349). Dr. Patel indicated that he would continue his efforts
to obtain authorization for Mr. B. to use spinal cord
August 27, 2014, Mr. B. reported to Dr. Patel that he had
"no durable benefit" following the August 6
epidural, and he rated the severity of his right leg pain and
numbness at an eight out often in severity (R. 282). Mr. B.
reported that he had difficulty sleeping, cramping in his
right calf, and difficulty at work due to leg pain; that
driving an hour to work exacerbated his pain; and that use of
a cane may make his six-hour workday more tolerable
(Id.). Dr. Patel provided Mr. B. with a work note
allowing him to use a cane (R. 283). Dr. Patel further noted
that psychological testing performed suggested possible MDE
(major depressive episode) (Id.).
experienced increased pain on September 17, 2014 that he
rated at a nine out often (R. 279). Mr. B. stated that he was
exacerbated working a six-hour day and that he felt pain when
he sat or stood for too long (Id.). It was
recommended that Mr. B. undergo spinal cord stimulation
because it has been a proven treatment with post-laminectomy
syndrome and was also recommended by Dr. Salehi; however, Mr.
B. would need to undergo a psychiatric evaluation prior to
being approved for the spinal cord stimulation trial (R.
280). Due to Mr. B.'s increased radicular pain, Mr.
B.'s work day was restricted to four hours
November 5, 2014, Mr. B. had trouble getting his treatments
covered by insurance and his gait was antalgic (R. 276). Mr.
B. experienced increased radicular pain and reported that the
six-hour work day was physically taxing for him (R. 277).
Tramadol was rotated with Norco to help with Mr. B.'s
increased pain, and it was recommended that Mr. B. see a
counselor or psychiatrist (Id.).
December 30, 2014, Mr. B. rated his pain at an eight out
often and felt it was increasing (R. 273). He described a
constant and sharp pain that was primarily located in his
right leg with increasing left-sided low back pain since his
last visit (Id.). Mr. B. felt the Norco medication
was helpful but inquired about an increased dosage due to his
severe pain levels (Id.). On examination, Mr. B. was
not in acute distress, his gait was antalgic, he walked with
a cane and the flexion and extension of his lumbar spine was
limited (R. 273-74). Mr. B. was assessed with lumbosacral
spondylosis without myelopathy, sacroiliitis, radiculopathy,
and post-laminectomy back syndrome in the lumbar region (R.
274). Spinal cord stimulation treatment was recommended, and
it was reiterated that Dr. Salehi also recommended this
treatment (Id.). It was noted that Mr. B. underwent
an FCE in June 2013, was participating in vocational training
four hours a day twice a week, and that he should
"continue these work restrictions" (Id.).
Finally, beyond the spinal cord stimulation treatment,
sacroiliac joint injection was recommended, Mr. B.'s
Norco dosage was increased, and he was referred to Kenneth R.
Lofland, Ph.D. for a mental health evaluation (Id.).
January 2015 until February 2016, Mr. B. was treated on a
weekly basis by Dr. Lofland for pain psychology, depression,
anxiety and anger (R. 421-56, 494-565, 905-22, 963-1066). Dr.
Lofland noted that Mr. B. was on the following medications:
Lyrica, Flexeril, Amitriptyline and Hydrocodone
(Id.). Dr. Lofland used cognitive behavior therapy
to lower Mr. B.'s anxiety, depression, anger and pain
perception (R. 494-565). Each week, Mr. B. relayed his pain,
depression and anxiety levels to Dr. Lofland along with the
number of panic attacks he experienced that week
(Id.). The record does not contain an assessment of
Mr. B.'s functional level by Dr. Lofland.
February 4, 2015, Mr. B. followed up with Dr. Patel
complaining of pain in his lower back that radiated to his
right calf, foot and toes and explained it was worse with
standing, sitting or driving for long periods of time (R.
313). Mr. B. described his difficulty driving the distance to
vocational training and his inability to take pain medication
while working (Id.). Dr. Patel reiterated his belief
that spinal cord stimulation was Mr. B.'s best option for
pain relief and that Mr. B. should continue his work
restrictions (R. 314).
was again seen by Dr. Patel on February 25, 2015, at which
time he reported difficulty driving more than 30 minutes and
that working consecutive days caused his level of pain the
following day to be severe especially because he could not
take pain medication while driving or working (R. 316). Mr.
B. rated his pain at a nine out often and noted it improved
with lying down (Id.). The examination revealed
tenderness to palpation over left sacroiliac joint, forward
flexion limited to 60 degrees, extension limited to ten
degrees and the slump seat test and straight leg raise both
positive on the right (R. 317). Dr. Patel assessed Mr. B.
with post-laminectomy syndrome, lumbar region; lumbosacral
spondylosis without myelopathy; sacroiliitis; and thoracic or
lumbosacral neuritis or radiculitis (Id.). Dr. Patel
reiterated his recommendation for a spinal cord stimulator,
continued Mr. B.'s medications and limited Mr. B. to
driving less than 30 minutes and working only four-hour
shifts every other day (Id.).
progress note dated April 22, 2015, it was noted that Mr. B.
was having issues with insurance regarding the
neurostimulator trial (R. 468). On examination, it was
reported that Mr. B. had tenderness over his left sacroiliac
joint, his flexion and extension were limited, and the ...